Reed v State of New York

[*1] Reed v State of New York 2007 NY Slip Op 51691(U) [16 Misc 3d 1134(A)] Decided on July 30, 2007 Ct Cl Patti, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 30, 2007
Ct Cl

William Reed, Claimant(s)

against

The State of New York, Defendant(s)



M-72904



Claimant's attorney:

Fitzsimmons, Nunn, Fitzsimmons & Plukas, LLP

By: Mark S. Nunn, Esq.

Defendant's attorney:

Hon. Andrew M. Cuomo

Attorney General of the State of New York

By: Thomas G. Ramsay, Esq.

Assistant Attorney General

Philip J. Patti, J.

Claimant seeks permission to file a late claim pursuant to Court of Claims Act §10(6). Things have gotten a little complicated since that initial application, and a procedural retrospective is required.

First, Claimant, previously proceeding pro se, sought permission to file a late claim in Motion No. M-69839, alleging negligence and medical malpractice of a facility doctor and medical staff at Attica Correctional Facility (Attica) that occurred between September 16, 2004 and October 29, 2004. In a decision and order dated June 9, 2005, Hon. Michael E. Hudson denied the application without prejudice, inter alia, for the failure to have included an affidavit in support from an expert to support the appearance of merit (Exhibit A to the Motion).

Claimant then retained his current counsel and filed the instant motion on February 1, 2007, appending, inter alia, the affirmation of a physician. After an adjournment to allow for the transmittal of certain medical records and authorizations, the Defendant filed its affirmation in opposition. Claimant rejoined with his reply affirmation dated April 16, 2007, and advised the Court that due to law office failure it had inadvertently included Claimant's pro se proposed claim from Motion No. M-69839 in its initial moving papers and substituted the intended [*2]proposed claim under consideration before me.

Defendant was given the opportunity to provide opposing papers thereafter, its surreply affirmation, to which the Claimant was given the opportunity to file its sur-surreply affirmation. This would properly catalog the papers before me on this motion.

Trying to begin at the beginning, one of the prerequisites of any application pursuant to §10(6) is that the motion be served and filed "any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Thus, prior to considering the exercise of my discretion on the substance of the motion, I have to determine whether the application itself is timely made. It is alleged that Claimant broke his ankle on September 11, 2004 at Attica and was taken to the Erie County Medical Center (ECMC), where he alleges that he was told that they would "try a cast first to see if that would work if not in seven to ten days there will be a follow[-]up exam and possibly a [sic] operation" (pro se proposed Claim attached to Notice of Motion - ¶3). Without reciting all the alleged intervening complaints and requests by Claimant, he alleges that he was not seen by a doctor again until October 29, 2004. The ECMC doctor who saw him on that date, Gerald Coniglio, M.D., has provided the expert affirmation in support of this application, and he opines, inter alia, that "Claimant's reduced chance for a successful outcome was caused by the failure to have him followed within 7-10 days as originally requested by ECMC" (Coniglio Expert Affirmation - ¶10). Claimant ultimately had surgery in July 2005.

The new proposed claim, contained in the Claimant's reply affirmation dated April 16, 2007, prepared by counsel, alleges inter alia, that the medical malpractice occurred "[f]rom September 21, 2004 continuously through October 29, 2004." In sum and substance, Claimant alleges continuous treatment between those dates, and contends that the instant motion is made within 2 ½ years from the date of the negligence and or medical malpractice.

In its surreply, the Defendant contends that the proposed claim appears to allege the Defendant's failure to have returned Claimant to ECMC within seven to ten days of September 11, 2004, disputes the contention of continuous treatment as there "is no actual treatment' by State actors alleged between September 21 and October 29" and thus challenges whether the continuous treatment doctrine applies after the expiration of that seven to ten-day period.

This all becomes the subject of Defendant's assertion that the proposed claim cannot survive the prerequisite of having been timely made under the provisions of article two of the Civil Practice Law and Rules.If one uses the latest date of continuous treatment alleged by Claimant, October 29, 2004, then the latest date a motion seeking permission to file a late claim sounding in medical malpractice could be filed is approximately April 29, 2007 (CPLR 214-a).

Defendant, however, argues that the latest date that is applicable is the tenth day after September 11, 2004, and thus the 2 ½ year statue of limitations began to run on September 21, 2004, and lapsed on March 21, 2007. Thus, Defendant argues that the proposed claim contained in the April 16, 2007 reply affirmation is untimely as to medical malpractice.

The Defendant in its surreply affirmation raises several issues, one of which is particularly provocative. In discussing the allegation in Paragraph 5 of the claim that "Claimant received emergent care at ECMC and, upon discharge was told to return to ECMC within 7-10 days for follow-up care for his fractured ankle [and that] Claimant was informed that the cast on his ankle may not work, and surgery may be required, hence the importance of returning for [*3]follow-up care within 7-10 days," the Defendant pointedly notes that the proposed claim does not allege that ECMC personnel so informed the Defendant.

But one scarcely has to wonder whether the alleged medical directive to return Claimant to ECMC for follow-up in seven to ten days was incorporated into a written report provided to the Attica authorities. If ECMC did not provide such a medical report to the Department of Correctional Services (DOCS), then the Defendant implies that it would have been Claimant's burden to have articulated to correction officers, prison infirmary personnel or other DOCS officials, the medical directive to return him to ECMC within seven to ten days (see Exhibit A to Claimant's Sur-Surreply). I find it extraordinarily unlikely, indeed that probably understates the reality, that any DOCS employees would simply allow an inmate to dictate his own ECMC return trip. It matters not whether Claimant was told to return in seven to ten days, but what the medical records sent to Attica authorities memorialized. Here, it appears that such direction was provided in writing, but the motion papers do not reveal what was contained in the Claimant's medical file at Attica.

For purposes of this motion, Claimant was an inmate under the complete care, custody and control of the Defendant, and it controlled his medical care, including follow-up with care and treatment with the outside medical provider, ECMC. Since Attica authorities returned Claimant to ECMC on October 29, 2004 for treatment of the same injuries that brought him to ECMC on September 11, 2004, I find that the continuous treatment doctrine applies. Accordingly, the submission of the correct proposed claim in Claimant's reply affirmation of April 16, 2007 does not contravene article 2 of the CPLR. Crum & Foster Ins. Co. v State of New York (25 AD3d 643) is not to the contrary. In that matter, the claimant filed a late claim after expiration of the 30-day period permitted by the trial court. Thereafter, the trial court, on its own motion, dismissed that claim, and directed that claimant to serve and file its claim within a new 30-day period. However, that order to show cause was initiated after the expiration of the three-year statute of limitations of CPLR 214, and the Appellate Division found that it was untimely. As succinctly summarized in Roberts v City University of New York (41 AD3d 825): "Once the applicable limitations period expired in this case, the court was without authority either to entertain a subsequent motion to extend the time to file a late claim, or, sua sponte, to grant such relief (see Crum & Foster Ins. Co. v State of New York, 25 AD3d 643)." Here, I have maintained jurisdiction over the motion, initially filed well in advance of the 2 ½ year statute of limitations, and the substituted proposed claim related back to the original motion (cf. Lockley v State of New York, 41 AD3d 439).

Having resolved the timeliness of the application, I now address the six factors enumerated in §10(6) which the Court should consider in determining whether to exercise its discretion to grant the application, to wit, whether (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the claim has the appearance of meritoriousness; (5) the failure to file or serve a timely claim or notice of intention resulted in substantial prejudice to the State, and (6) there is any other available remedy. An applicant need not satisfy all six factors to be successful (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Initially, Defendant raises the specter of the absence of an excuse for the delay between [*4]the filing date of Judge Hudson's June 15, 2005 order and the date of the instant motion. The reasonableness of the excuse for the delay in timely filing a claim relates only to that period of time, and not to the period here between motions. Any discussion of that period pertains solely to the factor of substantial prejudice. Other than an argument relating to prejudice because the Attica health services director at the time of the accrual of this claim had retired, Defendant challenges only the appearance of meritoriousness.

Judge Hudson denied the earlier motion due to the absence of an affidavit from an expert supporting allegations sounding in medical malpractice, citing Jolley v State of New York (106 Misc 2d 550). He also addressed the other statutory factors. Specifically he noted the alleged service of a notice of intention to file a claim upon the Defendant on January 27, 2005, which is 90 days from October 29, 2004. Claimant, appearing pro se, at that time was apparently concerned that his claim had accrued on September 21, 2004, and thus sought late claim relief. Regardless, Judge Hudson found, and I concur, that the delay, if any, was minor, and that Claimant had offered a reasonable excuse for his lack of timely action, to wit, his physical restrictions. In considering whether the State was given timely notice of the essential facts, the opportunity to investigate and the issue, Judge Hudson noted, as do I in this subsequent application, that the notice of intention was not provided to the Court, so it is difficult to divine what notice was provided therein, and in any purported grievances filed.[FN1] On the other hand, the notice of motion therein was dated January 27, 2005, the same date as the alleged service of the notice of intention, and it is at least arguable that there was continuous treatment until October 29, 2004. It appears to me, as it did to Judge Hudson, that these factors weigh marginally on Defendant's behalf. Judge Hudson, in addressing prejudice, noted that the Defendant asserted, without amplification, that it was severely prejudiced by the delay because the facility doctor had retired. In its current opposition, Defendant now alleges that it suffered prejudice (albeit not severe prejudice) because of this retirement, but added no amplification whatsoever. Regardless, §10(6) requires substantial prejudice, and that is not apparent in the papers before me.

On the other hand, the absence of amplification is an omission committed by both parties. Judge Hudson noted "[a]lthough Claimant asserts that he has no other remedy, he has failed to address the possible culpability of the outside hospital and treating physicians..." adding that the issue "would require fuller amplification in a subsequent application." In the instant application, there is counsel's conclusory statement that "Claimant has no other remedy to seek compensation for his injuries," but no amplification.

The most significant factor, as it should be, is the appearance of meritoriousness, as it would be futile to permit a meritless claim to proceed (Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967). A claimant need only establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11).

The proposed claim alleges medical malpractice and negligence The expert's affirmation by Gerald Coniglio, M.D., makes the following relevant assertions: [*5]

4. ...As a result of the delay between September 11, 2004 and the date of my first examination, October 29, 2004, it was very difficult to care for the Claimant appropriately.

5. Instead of promptly performing surgery, as I would have done if I had seen the Claimant within 1-2 weeks of injury, we attempted an alternative course of care, necessitated by the passage of time.

6. Conservative treatment proved unsuccessful, and we were finally forced to operate in July of 2005.

7. The surgery was difficult, and there was a reduced chance for a successful outcome, due to the delay in follow-up care between September 11, 2004 and October 29, 2004.

*****

10. Claimant's reduced chance for a successful outcome was caused by the failure to have him followed within 7-10 days as originally requested by ECMC.

This is hardly a compelling affirmation, and does not, for example, allege any deviation from accepted standards of care, but rather stresses the failure/delay in returning Claimant to ECMC within seven to ten days and its sequelae. Defendant avers several apparent contradictions, including in Dr. Coniglio's note of November 24, 2004 (Exhibit A to Defendant's Affirmation in Opposition), to wit, "[h]e was somehow mistreated at ECMC and today has a 50% laterally displaced fibula."

It appears that the Emergency Service Record and the Report of Consultation for the orthopaedic department of ECMC on September 11, 2004 (see Exhibit A to Claimant's Sur-Surreply) both indicated that Claimant was to have a follow-up in seven to ten days thereafter, with a specific doctor being named. Claimant in his sur-surreply affirmation seemingly acknowledges that this proposed claim sounds in negligence, and the failure to transport Claimant to ECMC is "not necessarily a medical decision which would give rise to medical malpractice" and this appears only to be simply negligence. He notes the inclusion of the expert's opinion for the purpose of asserting that the proximate cause of Claimant's injuries was his alleged failure to receive adequate follow-up care as ECMC directed. I agree.

The proposed claim and supporting papers however fail to demonstrate the appearance of merit in the cause of action sounding in medical malpractice.

Since the proposed claim sounds in negligence, with a three-year statute of limitations (CPLR 214), and not medical malpractice, the timeliness issue discussed above becomes moot. After balancing the statutory factors and reviewing all the papers before me, I have decided to exercise my discretion on Claimant's behalf, and he is permitted to serve and file his proposed claim, amended to assert only a cause of action sounding in negligence, within 30 days of service of a file-stamped copy of this order. Footnotes

Footnote 1:While Claimant has appended the earlier motion papers, including Defendant's opposing affirmation, he did not append Exhibit C thereto, the "relevant Grievance documents."